Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 578 (GUJ)

HARKISHAN SUNDARLAL VIRMANI v. STATE OF GUJARAT

2013-09-23

K.M.THAKER

body2013
JUDGMENT 1. In present petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have prayed, inter alia, that: “6(B) This Hon'ble Court may be pleased to allow this criminal misc. application by quashing and setting aside the private complaint, enquiry case No.7 of 2005 (M.Case No.5/2005) Salabarpura Police Station) pending before the learned JMFC, Surat in the interest of justice. 6(C) Pending admission, hearing and till final disposal of this petition, this Hon'ble Court may be pleased to stay the execution, implementation and operation of the order dated 4.1.2007 of passing the order of registration of complaint and further be pleased to stay further proceedings pending out of Criminal Enquiry Case No.7 of 2005 (M.Case No.5/2005 registered before Salabatpura Police Station) in the interest of justice.” 2. So far as the facts involved in this petition are concerned, the petitioner has alleged and claimed that the complainant and accused No.1 are brothers and due to certain business and commercial disputes and differences, they parted ways. The said separation did not put an end to the dispute between them. On the contrary, certain subsequent events resulted into the impugned complaint which is subject matter of present petition. The respondent complainant has alleged that accused No.1, i.e. petitioner No.1 unauthorisedly and surreptitiously and with the help of accused no.2, who, at the relevant time, worked as Accountant with the complainant, allegedly removed/took out about 90 cheques from the complainant's cheque book and though the authority of accused No.1 to sign the cheque of the account in question was revoked and cancelled (particularly after division of business), accused No.1, with the help of accused No.2, allegedly withdrew large amount from the complainant's account and he allegedly made unauthorised payments through the said cheques and thereby, accused No.1 committed the alleged offence (punishable under Sections 406, 419, 420, 381, 465, 467, 468, 471, 120B and 114 of Indian Penal Code) with the help of and as a part of conspiracy with the complainant's accountant, i.e. accused No.2. The respondent – complainant filed the abovementioned complaint in October, 2005 and alleged that the accused had committed alleged acts during the period between 23.2.2001 to 31.3.2001. 2.1 After the complaint was filed, the learned Magistrate passed order dated 14.11.2005 and directed the inquiry/investigation under Section 156(3). The respondent – complainant filed the abovementioned complaint in October, 2005 and alleged that the accused had committed alleged acts during the period between 23.2.2001 to 31.3.2001. 2.1 After the complaint was filed, the learned Magistrate passed order dated 14.11.2005 and directed the inquiry/investigation under Section 156(3). 2.2 In view of the said directions, the investigation officer conducted investigation and submitted report dated 2.9.2006. Thereafter, the learned Magistrate heard the parties and passed the order dated 4.1.2007 whereby the learned Magistrate did not accept the report of the investigation officer and instead held that the case is fit case to proceed under and in accordance with Section 204 of the Code. 3. Mr.Soparkar, learned senior counsel has appeared with Mr.Jasani, learned advocate for the petitioners and Ms.Brahmbhatt has appeared for the respondent – complainant. 3.1 Mr.Soparkar, learned senior counsel for the petitioners submitted that delay of more than 4 years in filing the complaint is not explained by the complainant and in view of the said delay, the complaint deserves to be quashed because it becomes clear that the complaint has been filed only as an afterthought and to cause undue harassment. Mr.Soparkar, learned senior counsel for the petitioners also submitted that the allegations made in the complaint are exfacie, improbable. He submitted that even if the allegations are taken at their face value, then also having regard to the details, it becomes clear that the allegations are absurd and improbable. So as to support the said submission, learned senior counsel for the petitioners submitted that if the petitioners were to unauthorizedly take out cheques from the complainant's cheque book, then the person intending to commit such steps would take a whole bunch of cheques running in continuous serial numbers, but would not take out cheques at random skipping few cheques in between. He also submitted that the said aspect has also been mentioned by the investigation officer in his report who has opined that the allegation is incorrect and cheques do not appear to have been used in regular course of business. So as to support the contention that the allegations are not only incorrect but improbable and absurd and that the cheques were used in regular course of business and with knowledge and consent of both sides, learned senior counsel for the petitioners relied on the report of the Chartered Accountant. So as to support the contention that the allegations are not only incorrect but improbable and absurd and that the cheques were used in regular course of business and with knowledge and consent of both sides, learned senior counsel for the petitioners relied on the report of the Chartered Accountant. Learned senior counsel for the petitioners submitted that actually, the cheques have been used for adjustment of accounting entries with reference to the amounts which the petitioners and the complainant had to pay to adjust and settle the accounts related to the period prior to the division of common business. Mr.Soparkar, learned senior counsel for the petitioners claimed that actually, any amount has not come into the hands/account of the petitioners and the entire transaction are only accounting entries. Mr.Soparkar, learned senior counsel for the petitioners submitted that the impugned complaint is filed with ulterior intention of harassing the petitioners and amounts to abuse of process of law. Mr.Soparkar, learned senior counsel for the petitioners also submitted that actually, the said transactions were made between two firms with mutual understanding. He also submitted that the Chartered Accountant has certified the accounts and recorded that there is no misappropriation. It is claimed and contended that the learned Magistrate has committed error in exercising power under Section 204 instead of accepting the report by the investigation officer. Mr.Soparkar, learned advocate for the petitioners relied on the decision in the case of Kishan Singh (Dead) vs. Gurpal Singh [ (2010) 8 SCC 775 ]. 3.2 The petition is opposed by the learned advocate for the respondent. Learned advocate for the respondent submitted that actually, there is no delay in filing the complaint inasmuch as the complainant lodged the complaint when the details came to the notice of the complainant. Learned advocate for the respondent – complainant also submitted that the learned Magistrate has passed a detailed and reasoned order which contains elaborate discussion about the material on record before the Court and the report by the investigation officer. Learned advocate for the petitioners submitted that the reasons recorded by the learned Magistrate for not accepting the report and for taking cognizance of the offence, do not warrant any interference. Learned advocate for the respondent submitted that since his (i.e. complainant's) accountant was acting handinglove with accused No.1 (i.e. petitioner). Learned advocate for the petitioners submitted that the reasons recorded by the learned Magistrate for not accepting the report and for taking cognizance of the offence, do not warrant any interference. Learned advocate for the respondent submitted that since his (i.e. complainant's) accountant was acting handinglove with accused No.1 (i.e. petitioner). Learned advocate for the respondent submitted that the allegations that the cheques were stolen and have been unauthorisedly removed and used, do not deserve to be discarded or rejected at this stage. Learned advocate for the respondent – complainant relied on reply affidavit, more particularly averments made in paragraph Nos.3, 5 and 6 of the affidavit dated 27.4.2007 and also the details mentioned in paragraph Nos.8, 11, 14 to 18 and paragraph No.21 of the surrejoinder dated 16.7.2013. Learned advocate for the respondent claimed and contended that in view of the fact that even after division/separation of business, accused No.1, i.e. present petitioner continued to use the complainant's office premises activities and in view of the fact that because of the said arrangement (which he, i.e. the respondent – complainant had in good faith and out of goodwill, allowed for some time so as to help accused No.1), the petitioner, i.e. accused No.1 had regular and direct access to the complainant's records, including cheque book and though the concerned bank was instructed that the authorisation in favour of petitioner No.1 to operate the account/issue cheques is discontinued the bank appear to have overlooked or missed the said instructions and since accused No.2 was alleged acting hand-in-glove with the petitioner, i.e. accused No.1, the correct and complete facts would be available and will become clear only after evidence is led during the trial before the learned trial Court and that, therefore, the petition may not be entertained at this stage and the request to quash the complaint may not be accepted. 4. In present case, essentially the learned Magistrate has refused to accept the police report and passed order to issue process which is brought under challenge. 4.1 In present case, the learned trial Court has passed the order directing investigation under Section 156(3) of the Code and thereafter upon proper examination of the report, the learned trial Court has not accepted police / investigation officer's report. 4.1 In present case, the learned trial Court has passed the order directing investigation under Section 156(3) of the Code and thereafter upon proper examination of the report, the learned trial Court has not accepted police / investigation officer's report. 4.2 The decision and action to direct investigation under Section 156(3) of the Code and to not accept the report is well within the power and discretion of the learned trial Court. 4.3 Ordinarily, when, after proper examination of police report, pursuant to the investigation under Section 156(3) of the Code, the trial Court passes an order, then this Court in exercise of jurisdiction under Section 482 of the Code would not interfere with such order unless it is apparent on face of the order that if it is not set aside, it would cause or result into injustice. 5. Therefore, in present case, it is necessary and relevant for the Court to take into account the said order dated 4.1.2007. 6. On examination of the said order, it emerges that the learned trial Court has examined the police report in detail and has dealt with the observations and remarks by the investigation officer's report. The said aspects are examined by the learned trial Court in light of the material available on Court's record as well as the material submitted along with the report. 7. On consideration of the order in light of the police report, it is not possible to hold that the view and conclusion of the learned trial Court is wholly unjustified and that the learned trial Court ought not have taken cognizance of alleged offence and/or there was no basis or justification to proceed with the trial of the case. 8. In view of the complainant's submission that the accused continued to share the complainant's office premises for some time even after the division / separation of business, it will not be just and proper for the Court at this stage to record any conclusion and/or to admit or to rule out the possibility that during the period while the accused shared the complainant's office, there was access to the cheque book and scope for misuse of the cheques from the complainant's cheque book. 9. 9. In absence of any evidence, it would not be proper for this Court to record any conclusion and/or to reject or discard, at this stage, the claim and allegation that the complainant's cheque book used to be in custody with the complainant's accountant and he has acted in conspiracy with accused No.1, i.e. the petitioner. At this stage, the facts are hazy and the material collected by investigation officer – in light of which the report is supposedly prepared – does not constitute complete set of evidence in light of which legally conclusion can be reached and recorded. At this stage and in proceedings under Section 482 of the Code, the Court should refrain from recording any conclusion. 9.1 In this context, reference may be made to the decision in case between State of Bihar v. Murad Ali Khan & Ors. [(1988) 4 SCC 655], wherein the Honble Apex Court observed, with regard to jurisdiction under Section 482, that: “15. It is trite jurisdiction under Section 482 Cr.P.C., Which saves the inherent power of the High court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon and enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him. Through it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is could upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the chargesheet do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not. (emphasis supplied) 16. (emphasis supplied) 16. In Municipal Corporation of Delhi v. R.K. Rohtagi, 1983 (1) SCC 1 , it is reiterated: [SCC p.6] It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. 17. In Municipal Corporation of Delhi v. P.D. Jhunjunwala, 1983 (1) SCC 1 , it was further made clear: [SCC p.10] . . . As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. We have already held that for purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further.” (emphasis supplied) 9.2 The Hon'ble Apex Court has always put a word of caution with regard to any intervention or interference in the process of investigation. In this regard reference may be made to the observations of the Honble Apex Court in Sanapareddy Maheedhar Seshagiri & anr vs. State of Andhra Pradesh and anr. ( AIR 2008 SC 787 ) which read thus: 30.....In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing the FIR or complaint or restraining the competent authority from investigating the allegations contained in the FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. Therefore, while deciding a petition filed for quashing the FIR or complaint or restraining the competent authority from investigating the allegations contained in the FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in the FIR or complaint discloses commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of the FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C.” (emphasis supplied) 9.3 So as to appreciate the submissions by learned senior advocate for the petitioners, it is necessary to take into account the observations by the Hon'ble Apex Court in the case of State of Andhra Pradesh vs. Goloconda Linga Swamy and another [ AIR 2004 SC 3967 ], wherein the Hon'ble Apex Court observed in paragraph No.8 that: ”8. As noted above the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint / F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide , frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.” (Emphasis supplied) 9.4 In light of the abovequoted observations by Hon'ble Apex Court in exercise of power under Section 482 of the Code, this Court at this stage, can neither examine the defence or explanation of the petitioners – accused persons and any prima facie conclusion also cannot be recorded nor can this Court enter into analysis and assessment of the material nor can this Court assess the case in light of probabilities. 10. So far as the submission that the cheques in question were used and the entries/transactions were made with mutual consent of the parties so as to settle the accounts, is concerned, it would be necessary to consider the issue as to whether the said transaction or procedure was undertaken and carried out with mutual consent or not and that aspect is a matter of evidence/trial and it would not be just or proper or permissible for this Court at this stage to record any conclusion in this regard, more so when the complainant has alleged that accused No.2 acted hand-in-glove with accused No.1 and both acted in connivance to commit fraud and alleged offence. 11. At this stage, the High Court cannot dwell on the probability or genuineness of the allegations or reliability of evidence and this Court is not to consider as to whether the complainant will succeed in the matter or not and whether the trial would result into conviction or not. 12. On submission of the report by the investigation officer after conclusion of investigation in view of the directions under Section 156(3) of the Code, it is for the learned trial Court to pass appropriate order either under Section 203 or Section 204 of the Code. At that time, the learned trial Court has to consider prima facie satisfaction as to whether the case against accused persons is made out or not and whether sufficient ground for the purpose of punishment is made out or not. At that time, the learned trial Court has to consider prima facie satisfaction as to whether the case against accused persons is made out or not and whether sufficient ground for the purpose of punishment is made out or not. If the learned trial Court, after examining the police report, records its satisfaction that sufficient ground is made out and on recording its satisfaction agrees or disagrees with and accepts or refuses to accept the report, then this Court in exercise of inherent and discretionary jurisdiction under Section 482 of the Code, would ordinarily not interfere with such satisfaction and decision of the learned trial Court. The code does not prescribe that only if the investigation report opines that investigation has brought out case against the accused then only Magistrate can take cognizance. 13. In this context, it is appropriate to refer to and take into consideration the observations by the Hon'ble Apex Court in the case of Minu Kumari vs. State of Bihar [ (2006) 4 SCC 359 ], which reads thus: “10. In Abhinandan Jha and another v. Dinesh Mishra ( AIR 1968 SC 117 ), this Court while considering the provisions of Sections 156(3), 169, 178 and 190 of the Code held that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c). 11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c). 11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also.” (Emphasis supplied) 13.1 In this context, it is relevant to take into consideration the following observations by Hon’ble Apex Court in the case of Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi [ AIR 1976 SC 1947 ]: “6. Applying these principles to the facts of the present case it seems to us that the present case is not one in which the High Court should have quashed the proceedings. To begin with, the order of the Magistrate dated February 11, 1975 issuing process against respondents 1 and 2 is a very well reasoned one which takes into consideration the allegations in the complaint as also the evidence adduced in support of it. The Magistrate clearly applied his mind and has analysed the evidence into three categories (I) those witnesses who have deposed as eyewitnesses regarding the actual occurrence and the part attributed to respondents 1 and 2. The Magistrate then refers to other witnesses who corroborated the evidence of the complainant; and thirdly the Magistrate relied on the evidence of witnesses who were admittedly signatories to the dying declaration and had clearly stated on oath that the names of respondents 1 and 2 were mentioned in their presence by the deceased but were not recorded by the Police Patel in the dying declaration and in spite of the protest by the witnesses they were made to sign the dying declaration as attesting witnesses under threat and duress. On a consideration of this evidence the Magistrate was satisfied that a prima facie case against respondents 1 and 2 was made out and he accordingly issued process against them. It was not a case where the Magistrate had passed an order issuing process in a mechanical manner or just by way of routine. On a consideration of this evidence the Magistrate was satisfied that a prima facie case against respondents 1 and 2 was made out and he accordingly issued process against them. It was not a case where the Magistrate had passed an order issuing process in a mechanical manner or just by way of routine. The High Court appears to have gone into the whole history of the case, examined the merits of the evidence, the contradictions and what it called the improbabilities and after a detailed discussion not only of the materials produced before the Magistrate but also of the documents which had been filed by the defence and which should not have been looked into at the stage when the mater was pending under Section 202, has held that the order of the Magistrate was illegal and was fit to be quashed. In the first place the High Court ought not to have considered the documents filed by respondents 1 and 2 in the previous revision without obtaining the permission of the Court and particularly when the High Court itself gave no directions whatsoever to the Magistrate to consider these documents. In fact the Magistrate considering the question as to whether process should be issued against the accused or not cannot go into the materials placed by the accused and therefore the High Court could not have given any such directions while disposing of the previous revision. The impugned order of the High Court proceeds on the basis that it was incumbent on the Magistrate to have considered the documents and their effect on the truth or falsehood of the allegations made by the complainant. This was an entirely wrong approach. As we are clearly of the opinion that the Magistrate was fully justified in completely excluding the documents from consideration, we refrain from making any observation regarding the effect of those documents. In fact the documents filed and they were, therefore, not admissible. At any rate, at the stage of Section 202 or Section 204 of the Code of Criminal Procedure as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them. At any rate, at the stage of Section 202 or Section 204 of the Code of Criminal Procedure as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them. Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under Section 202 would have to be converted into a fulldress trial defeating the very object for which this section has been engrafted. The High Court in quashing the order of the Magistrate completely failed to consider the limited scope of an inquiry under Section 202. Having gone through the order of the Magistrate we do not find any error of law committed by him. The Magistrate has exercised his discretion and has given cogent reasons for his conclusion. Whether the reasons were good or bad, sufficient or insufficient, is not a mater which could have been examined by the High Court in revision. We are constrained to observe that the High Court went out of its way to write a laboured judgment highlighting certain aspects of the case of the accused of the case of the accused as appearing from the documents filed by them which they were not entitled to file and which were not entitled in law to be considered.” (Emphasis supplied) 13.2 Thus, it emerges, in view of the observations by the Hon'ble Apex Court in the decision in case of Minu Kumari (supra), that 'the Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also.' 13.3 From the said observations by the Hon'ble Apex Court, it becomes clear that the order passed by the learned Magistrate is in accordance with the position explained by the Hon'ble Apex Court. 13.4 So far as the reasons recorded by the learned Magistrate are concerned, as such, it would not be appropriate or justified for the Court to enter into the adequacy or quality of the reasons at this stage and proceedings under Section 482 of the Code. 13.5 Thus, when upon examination of the report, learned Magistrate has independently come to the conclusion that in light of available material this is a fit case to take cognizance then this Court would, ordinarily, not interfere with such decision by learned Magistrate and this Court, in exercise of power under Section 482 of the Code, would ordinarily not quash the proceedings. 14. During the hearing of present petition, learned senior counsel for the petitioners made effort to take the Court through the statements recorded by investigation officer which, according to the learned senior counsel, brings out chronology of transactions and thereby, demonstrates that actually, any amount has not come into hands of accused No.1, as alleged by the complainant and all transactions are mere accounting entries, which, even otherwise, were made with mutual consent so as to settle the accounts. 15. However, as mentioned hereinabove earlier, the said aspects are issues of fact and matter of evidence which the parties have to establish by leading evidence to support their respective case and to rebut in defence. 16. From the nature of allegations, more particularly the allegation that accused Nos.1 and 2 removed away cheques from complainant's cheque book without his knowledge, permission and consent and then misused the same and thereby they have unauthorisedly and illegally withdrawn funds from the bank, it cannot be said that the subject matter of the case and the dispute is purely and exclusively of civil nature without any traces or traits or ingredients of alleged offence and therefore also it is not possible for this Court to quash the proceedings at this stage on the said ground. 16.1 In this context, useful reference may be made to the decision by Hon'ble Apex Court in case of Kamladevi Agarwal vs. State of West Bengal [ (2002) 1 SCC 555 ]. In the said decision in paragraph Nos.9, 11 and 12, the Hon'ble Apex Court observed as under: “9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to judgments in State of Haryana v. Bhajan Lal (1992 Suppl (1) SCC 335, Rajesh Bajaj v. State NCT of Delhi (1999) 3 SCC 259 this court in Trisuns Chemical Industry v. Rajesh Agarwal (1999) 8 SCC 686 held: "Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions (vide State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 and Rajesh Bajaj v. State NCT of Delhi (1999) 3 SCC 259 . In the last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations : (SCC p. 263, para 19) "10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating were committed in the course of commercial and also money transactions." 11. On Lalmuni Devi (Smt.) v. State of Bihar (2001) 2 SCC 17 this Court held : "There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed." 12. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed." 12. Again in M. Krishnan v. Vijay Singh (Criminal Appeal No. 1028 of 2001 decided on 11102001) this Court held that while exercising powers under Section 482 of the Code, the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of the dispute is primarily of a civil nature, the criminal prosecution cannot be quashed because in cases of forgery and fraud there is always some element of civil nature. In a case where the accused alleged that the transaction between the parties are of a civil nature and the criminal court cannot proceed with the complaint because the factum of document being forged was pending in the civil Court, the Court observed: "Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal Court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil Court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of." (Emphasis supplied) 17. In present case, entire material is not available on record of present petition and therefore, several factual aspects are unclear. 17.1 On the other hand, the reasons recorded by the learned Magistrate reflect probable view in light of the facts available on record. 17.2 On overall consideration of all the facts, it appears that the order dated 4.1.2007 does not warrant any interference at this stage. 17.3 Having regard to the facts and circumstances and the foregoing reasons, the Court is not inclined to interfere with the said order or to quash the chargesheet. The issue related to delay caused in filing the complaint would be considered by the learned trial Court at appropriate stage and the complaint at this stage does not deserve to be quashed on ground of delay. 18. So far as the decision on which the learned advocate for the petitioners has placed reliance, is concerned, the facts of present case are different from the set of facts. Moreover, in present case, the learned trial Court has, after considering the material on record, passed order dated 4.1.2007 and essentially, it is the said order which is, in effect and in substance, under challenge and, as mentioned above the said order, for the foregoing reasons, does not warrant interference at this stage. 19. So far as present case is concerned, when the order dated 4.1.2007 passed by the learned Magistrate, it examined in light of the observations by the Hon'ble Apex Court in the abovementioned decisions, including the observations in the decision in case of Minu Kumari (supra), it emerges that the police submitted the report and the learned Magistrate has, after taking into consideration the report, passed the order dated 4.1.2007 and recorded that the report is not accepted. The learned Magistrate has also recorded reasons to support and justify his said conclusion. After having recorded his disagreement with the report, the learned Magistrate has directed the process to the accused persons may be issued. The learned Magistrate has also recorded reasons to support and justify his said conclusion. After having recorded his disagreement with the report, the learned Magistrate has directed the process to the accused persons may be issued. In that view of the matter, the Court is not inclined to interfere with the said conclusion. 20. Having regard to the foregoing discussion and reasons, the Court is not inclined to entertain the petition. In view of this Court, the petition fails and does not deserve to be allowed. Consequently, the petition is rejected. Rule is discharged. No order as to cost. At this stage, learned advocate for the petitioner submitted that the interim relief granted in 2007 has remained in operation until now and the petitioner intends to approach the Hon'ble Apex Court against present order and that, therefore, the protection granted earlier may be continued for eight weeks. Learned advocate for the respondent has opposed the said request. Considering the request made by learned advocate for the petitioner and the reason for which the request is made, the relief which has remained in operation until now, will continue till 18.10.2013. Petition dismissed.